Mr ACD and the Department of Justice, Equality and Law Reform.

Case 99003. Note : This decision was appealed to the High Court by the Minister for Justice, Equality and Law Reform and by the Courts Service. The Court granted leave to the Director of Public Prosecutions to be joined in the proceedings. Judgement was delivered by Mr. Justice Finnegan on 14 March 2001. The High Court varied the Commissioner's decision and found that Mr. ACD was not entitled to access to the transcript as its disclosure to the general public is prohibited by the Court. The judgement is described briefly below. The full text of the High Court decision can beviewed on this website.

Case Summary

The Court held that the Commissioner's decision was not correct insofar as it granted access to a transcript of the proceedings and to certain witness statements.

The Court found that, for the purposes of section 46(1)(a), a shorthand note taken by an official stenographer ( and any transcript which might be produced from it ) is a record created by the court, having regard to the relationship between the official stenographer and the court as it appears from the Rules of the Superior Courts.

The Court also found that such a record is one whose disclosure to the general public is prohibited by the court. This was because the Rules of the Superior Courts regulate who is entitled to obtain a transcript and the conditions as to payment which should apply. The Court interpreted these Rules as prohibiting the issue of a transcript to any other person except where an order is made in favour of some other person pursuant to the Rules of the Superior Courts Order 31 Rule 29.

In the light of the above findings, the Court found that the transcript fell outside the exception to section 46(1)(a). It followed that the Freedom of Information Act did not apply to it.

The Court found that the book of evidence was a record created by the Director of Public Prosecutions or his Office. It further found that the witness statements, which were contained in the book of evidence compiled by the Director of Public Prosecutions, were created by the Director or by his Office. The Court remarked that originality is not an essential ingredient in a record and that a person who makes a copy of a record is the creator of that record.

Facts

The requester was the victim of an assault by his wife in 1997. She was charged with the assault and the case was heard in the Circuit Criminal Court in June 1998. The requester applied to the Department for access to the complete transcript of the court proceedings and the associated materials relating to the case. A record of the proceedings had been made by a freelance stenographer who was not an employee of the Department, but no written transcript had been made. The other records at issue were a series of medical and other reports relating to the accused, the book of evidence and other routine records related to the trial. The Department refused access to these records under section 46(1)(a)(i) of the FOI Act on the basis that they were records held by the Court, that transcripts were only prepared in the event of an appeal and that the President of the High Court had directed that transcripts should not be made available for any purpose other than an appeal to the Court of Criminal Appeal. The Department claimed that there was a court practice of refusing access to court files and that this amounted to a prohibition on disclosure for the purposes of section 46(1)(a)(i)(I).

Decision

The Commissioner did not accept that a general practice, which had developed long before the enactment of the FOI Act, of refusing general access to documents held by the courts amounts to a prohibition on the disclosure of records as referred to in section 46(1)(a)(i)(I) of that Act.

In relation to the transcript, the Commissioner found that the record related to proceedings in a court and that its disclosure to the general public was not prohibited by the court. He found that the record was under the control of the court in the sense that the court was entitled to a copy of the transcript upon payment of the appropriate fee. The Commissioner decided that the fact that the court may have the record under its control, or may have arranged for its creation, does not mean that the record was created by the court. He found therefore that section 46(1)(a) did not exclude the transcript from the application of the FOI Act.

The Commissioner found that section 12(1)(f) applied to enable the requester to acquire a written, decodified version of the transcript. He noted that section 47 of the Act provided for the charging of fees for the cost of the search for and retrieval of a record as well as the estimated cost of any copy. He found that "copy" in the section included a transcript.

The Commissioner found that a number of the records, which related to proceedings in a court, were created by the court and were excluded from the provisions of the Act by section 46(1)(a).

A number of the pre-commencement records related to a third party. The Commissioner found that one record related to joint personal information about the requester and the third party and that there was no public interest in granting access to the joint personal information that would outweigh the public interest in upholding the right to privacy.

The Commissioner found that some of the pre-commencement records related to personal information about the requester and that the requester was entitled to access to this information.

Date of Decision: 13.09.2000

Background:

Mr ACD, the requester in this case, was the victim of an assault by his wife on 10 July 1997. Mrs ACD was charged with the assault and the case was heard in the Circuit Criminal Court in Dundalk on 10 June 1998. Mrs ACD pleaded guilty to the charge of occasioning actual bodily harm, received a nine month suspended sentence and was bound over to keep the peace for twelve months. Mr ACD claims that, during the course of the proceedings, statements were made by counsel for his wife which were damaging to his good name and character and that these statements were reproduced in the local media. He contends that he was given no opportunity to challenge these statements during the proceedings.

On 29 September 1998, Mr ACD applied to the Department of Justice, Equality and Law Reform ("the Department") under the Freedom of Information Act, 1997 (" the FOI Act") for access to the complete transcript and associated materials for the case DPP v Mrs ACD heard in the Circuit Criminal Court, Dundalk on 10 June 1998. The Department refused access to these records under section 46(1)(a)(i) of the FOI Act on the basis that they were records held by the Court. The Department also stated that transcripts are prepared only in the event of an appeal and that no transcript was prepared in this case. Furthermore, the Department stated that the President of the High Court had directed that transcripts cannot be used or made available for any purpose other than an appeal to the Court of Criminal Appeal.

Mr ACD applied for an internal review of this decision on 27 November 1998. The Department, in its internal review decision dated 16 December 1998, refused the request on the basis that no transcript had been prepared and also decided that, even if this transcript had existed, section 46(1)(a)(i) applied. The review decision was silent on the question of access to the "associated materials" but it was reasonable to infer that they were again refused.

Mr ACD applied to me for a review of this decision on 22 December 1998 and I accepted his application for a review.

By letter dated 15 January 1999, my Office invited Mr ACD to make a submission to me on any matter relating to this review. In the course of a series of letters, Mr ACD provided me with a considerable amount of background material in relation to the assault, the proceedings and events following these proceedings.

On the same date my Office asked the Department to forward the records relating to the review and invited it to make a submission in support of its decision. The Department was specifically invited to outline its interpretation of what constitutes "courts" within the meaning of section 46(1)(a)(i) of the Act, its opinion as to who holds the requested records and the position of the County Registrar in relation to the matter. In a further letter dated 1 April 1999, my Office asked the Department whether a stenographer had attended these proceedings, whether the stenographer's notes exist and by whom they are held. The Department was also asked to say by whom the stenographer (if there was one) was employed and the basis of that employment contract. The Department was also requested to provide me with a copy of the direction issued by the President of the High Court regarding transcripts.

The Department duly provided the relevant records and clarified that, whereas a transcript of the trial had not been made, a stenographer had attended the trial and a transcript could be produced from the stenographer's notes. The Department made a written submission on 26 May 1999 and a summary of this submission is set out below.

On 9 November 1999, the Courts Service was established under the Courts Service Act, 1998 and responsibility for the management of the courts and the court offices passed to it from the Department.

My Office wrote to Mr ACD on 22 February 2000 outlining the nature of the records encompassed by his request and asking him to say whether he intended to confine his request to the transcript of the proceedings, since some of his correspondence seemed to suggest that his primary interest was in this record. In the event, Mr ACD replied that he felt unable to confine his request to the transcript; he said he was anxious to get all relevant records that were available.

On 6 March 2000, staff of my Office met with the Courts Service to see whether it might be possible to deal with Mr ACD's request without the need for a binding decision by me. In the event this did not prove possible, so I have decided that I should proceed to a decision on this matter.

My Office wrote to Mr ACD on 3 April 2000 outlining some preliminary views in relation to this review. There is no need for me to record these preliminary views other than to say that my Office's examination of the records at issue suggested that Mr ACD did not have a right of access to certain of the records. Mr ACD did not accept the preliminary views put forward by my Office and requested that I make a binding decision in the case.

The records at issue in this review can be described as follows:

a transcript of the proceedings in the case of DPP v Mrs ACD,

a series of medical records and reports totalling 73 pages relating to Mrs ACD (Group 1),

the book of evidence and additional book of evidence (Group 2),

ten records of a routine nature dealing with the trial (Group 3).

The book of evidence consists of 23 statements of evidence numbered 1 to 23; a statutory declaration of service of documents; a statement of charges; a list of exhibits; a list of witnesses, and two statements made to An Garda Síochána by Mrs ACD. The additional book of evidence consists of a list of additional witnesses; two statements of evidence numbered 23 (a different record to number 23 in the original book of evidence) and 24; a covering letter from the State Solicitor to the County Registrar.

The records in Group 3 consist of four orders or directions made by the judge prior to 21 April 1998; two summonses issued prior to that date; two completed claims for payment in respect of medical reports; a hand-written record of the sentence imposed on Mrs ACD and a statement to the jury of the charges preferred. In the course of the review, Mr ACD acknowledged that he had a copy of part of the book of evidence viz. the witness statements made by himself and his three children and he said that he did not require access to these documents under the FOI Act.

Therefore, the matter before me for consideration in this review is whether Mr ACD has a right of access under the FOI Act to the transcript of the proceedings in the case of DPP v Mrs ACD and to the records on the court file (with the exception of the witness statements made by Mr ACD and his children), details of which I have outlined above.

Submissions

The Department

Section 46(1)(a)(i)

In its letter of 26 May 1999 to my Office, the Department said that it was advised that the word "courts" in section 46(1)(a)(i) of the FOI Act means the courts established under the Constitution and the offices attached to those courts in which the court files are held. In the same letter, the Department went on to explain its reliance on section 46(1)(a)(i) in refusing this request.

It stated that section 65(3) of the Courts Officers Act, 1926 provides for the preservation of judicial control of court business as follows:

" (3) All proofs and all other documents and papers lodged in or handed in to any court in relation to or in the course of the hearing of any suit or matter shall be held by or at the order and disposal of the judge or the senior of the judges by or before whom such suit or matter is heard."

The Department explained that, in practice, court files are held in offices attached to the various courts under the general superintendence of the officer in charge of the office, which in this case would be the County Registrar. The Department also explained that, unless the relevant judge decides otherwise, access to these files is restricted to the solicitors on record as representing the parties to the proceedings or to any person who furnishes the consent of a solicitor representing a party to the proceedings. A County Registrar, as an officer of the court, would be subject to the established practice or orders of the relevant judge or judges, according to the Department. The Department also indicated that it is open to a person to apply (outside of the FOI Act) to the relevant judge for access to a court file.

With regard to the transcript of the proceedings, the Department stated that section 3 [as inserted by section 7 of the Criminal Justice (Miscellaneous Provisions) Act, 1997] of the Courts of Justice Act, 1924 provides that an appeal to the Court of Criminal Appeal shall be heard and determined on a record of the proceedings at the trial and on a transcript thereof verified by the trial judge. The Department further explained that the State is therefore obliged to have a record of the proceedings taken at every criminal trial which is appellable to the Court of Criminal Appeal but that a transcript is not prepared unless and until an appeal is made or the trial judge requests it.

The Department stated that a freelance stenographer was employed by the State to attend the trial of Mrs ACD and to take a record of the proceedings. The Department said that this stenographer retains the record of the proceedings which will ultimately pass into the custody of the Chief Stenographer at the Circuit Court Office, Four Courts, Dublin 7. According to the Department, freelance stenographers are engaged as required by the Chief Stenographer to cover sittings whenever insufficient staff stenographers are available and are paid according to a set fee scale, a copy of which the Department provided for my information. However, the Department stated that the State does not currently have a written contract or agreement with any of the freelance stenographers it employs.

The Department stated that it is advised that the stenographer's note is a record of the proceedings of the Court and is, therefore, a record held by the courts within the meaning of section 46(1)(a)(i) of the Act. The Department argued that the question of who employs the stenographer is not relevant but that the question which arises is the purpose for which the notes are made and for whom they are held. With regard to the application of section 46(1)(a)(i) to this case, the Department claimed that, if it is not the practice of the courts to release documents, then their release is "prohibited" by the court.

The Department also provided me with a copy of a memorandum and enclosure dated 20 October 1994 which refers to a direction of the President of the High Court as the basis for the refusal of access to such transcripts. The enclosure appears to be a draft letter (to whom is unclear) which includes the following:

"Transcripts of evidence in criminal cases are prepared for one purpose and one purpose only, viz. to enable the Court of Criminal Appeal to hear and determine appeals by persons convicted on indictment before the Circuit Criminal Court or the Central Criminal Court.

Such appeals are heard and determined by the Court of Criminal Appeal on the report of an official Stenographer present at the trial of the Appellant.

No report is prepared by the official stenographer unless the accused person appeals against his conviction and/or sentence.

An appeal has not been lodged in respect of any of the cases mentioned in your letter and accordingly no transcript has been prepared.

Transcripts of evidence prepared for the Court of Criminal Appeal cannot be used or made available for any other purpose as to do so, could cause injustice to an accused person who has been dealt with by the Courts if the facts in his case were to be reviewed or dealt with in any way by any other body. His Constitutional right is to have his case heard and determined by the Courts in accordance with law.

The request made on behalf of the Select Committee must be refused."

Mr ACD

Mr ACD made submissions to me in a number of letters in the period from 1 February 1999 to 29 May 2000. He also supplied some background material by e-mail dated 13 April 1999. Much of Mr ACD's correspondence to me consists of complaints about the handling of the court case by a number of parties, the reporting of these proceedings in the media and the attitude displayed by officials in a number of state agencies from whom he had sought assistance. He also described the personal consequences of his experiences. I do not need to reproduce these points below as they are irrelevant to my decision as to whether Mr ACD has a right of access to the records which he is seeking under the FOI Act.

However, Mr ACD did make a number of arguments in support of his application which, although he did not relate them to the specific provisions of the Act, relate to the claim for exemption made by the Department under section 46(1)(a)(i).

Mr ACD expressed his concern that statements made by the defence counsel in the course of the proceedings, and the subsequent reporting of the proceedings, damaged his good name. He said that all he is attempting to do is to assert his constitutional right to his good name. He thought that if, under Article 34 of the Constitution, justice is to be administered in public, then all of the material associated with a public trial should be available to any member of the public including the victim of a crime.

He said he presumed that the original stenographer's record was under the control of the court service. If not, he could envisage a situation where a private stenographer would have the only copy of the proceedings without any control being retained by the Department and the stenographer would be in a position either to refuse to hand over the record or to destroy it if he so wished.

Findings

As a preliminary point, I believe that Mr ACD was correct in addressing his request to the Department because, by virtue of paragraph 4 of the First Schedule to the FOI Act, any reference to the Department in the FOI Act is to be construed as including a reference to the courts. In the meantime, the Courts Service has been established and that body came within the FOI Act in its own right on 1 March 2000, having been prescribed by the Minister for Finance in accordance with paragraph 1(5) of the First Schedule. The Courts Service is not a relevant party to the review nor did I formally notify it of the review in accordance with section 34(6) of the FOI Act. However, it is clear that the views of the Courts Service have been made available to me through the Department. In the circumstances, I have proceeded on the basis that the Department is the relevant party to the review.

Two provisions of the FOI Act are relevant to this review. These are:

section 6 which confers the right of access to records, and

section 46(1)(a) which provides that the FOI Act does not apply to certain records held by the courts.

I shall explain how I interpret these provisions before dealing with the specific records at issue in this case.

Section 6

Many of the records which are the subject of this review were created before the commencement of the Act, i.e. before 21 April 1998. The significance of this is that, by virtue of section 6(4) of the FOI Act, a right of access only extends to records created after the commencement of the Act. However, by virtue of section 6(5) of the Act the right of access also exists where:

"(a) access to records created before the commencement of this Act is necessary or expedient in order to understand records created after such commencement, or (b) records created before such commencement relate to personal information about the person seeking access to them".

No argument has been put to me by Mr ACD that section 6(5)(a) applies i.e. that access to records created before 21 April 1998 is necessary or expedient in order to understand records created after that date. However, it must be acknowledged that Mr ACD could not easily make such a case given that he had not been given access to any of the records.

In my decision in the case of Mr ABE and the Department of Marine and Natural Resources (Decision No. 98117 - OIC Decisions Vol. 2 pp. 76 - 77) I explained how section 6(5)(a) should be applied:

"In one sense 'to understand' a document means simply to comprehend what is written in the document, or, in other words, to have a literal understanding of what it says. On this interpretation, a record is likely to be capable of being understood unless it is ambiguous or incomplete in some way or contains symbols or codes which are not explained in the record.

However, it seems to me that the word 'understand' in section 6(5)(a) is not used in this narrow sense. In my view, the section is directed not at the question of whether a record can be understood in a literal sense without reference to earlier records but at whether its substance (or gist or subject matter) can be understood. Having said that I must make it clear that, in my view, the fact that a document does not contain all the information which a reader might wish to have does not mean that the substance of a document cannot be understood. The fact that an earlier record may throw fresh light on the subject discussed in a later record or that it may enable a requester to extend or analyse information contained in a later record, does not of itself mean that access to the earlier records is necessary or expedient in order to understand the later record.

I have also considered the significance of the use of the word 'expedient' in section 6(5)(a). 'Expedient' I take to mean 'fit, proper or suitable to the circumstances of the case'. [OED]. It is clear that the word 'expedient' is less restrictive than the word 'necessary'. It might be argued that the use of the word 'expedient' is designed to enable a requester to gain access to pre-commencement records where that access enhances his/her understanding of a post-commencement record. I do not accept that argument. It seems to me that the release of a pre-commencement record is justified only to the extent that such access is a suitable means to achieving the end of understanding the substance of the post-commencement record. I consider that I would not be justified in holding that any pre-commencement record which deals with the subject matter of a post-commencement record or which might shed new light on that subject matter, is, per se, within the ambit of section 6(5)(a)".

Having examined all of the records in this case which were created before 21 April 1998, I am unable to see how access to any of these records is necessary or expedient in order to understand records created after 21 April 1998. In the circumstances, I find that section 6(5)(a) does not apply in this case.

The possible application of section 6(5)(b) turns on the question of whether or not the records relate to personal information about Mr ACD.

Section 2(1) of the Act defines "personal information" for the purposes of the Act as follows:

'"personal information" means information about an identifiable individual that -

(a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or

(b) is held by a public body on the understanding that it would be treated by it as confidential".

The section goes on, "without prejudice to the generality of the foregoing", to detail twelve specific instances of information which is personal. Apart from the first, I need not reproduce these for the purposes of this decision. The first instance is:

"(i) information relating to the educational, medical, psychiatric or psychological history of the individual,".

The question of whether section 6(5)(b) applies in this case is dealt with later in this decision.

Section 46(1)(a)(i)

The Department has relied on section 46(1)(a) to refuse access to the records contained in the court file and to a copy of the transcript referred to earlier. Section 46, in so far as it is relevant to the present review, provides as follows:

"46.-(1) This Act does not apply to- (a) a record held by- (i) the courts, (ii) a tribunal to which the Tribunals of Inquiry (Evidence) Act, 1921, is applied, or (iii) a service tribunal within the meaning of section 161 of the Defence Act, 1954, and relating to, or to proceedings in, a court or such a tribunal other than- (I) a record that relates to proceedings in a court or such a tribunal held in public but was not created by the court or tribunal and whose disclosure to the general public is not prohibited by the court or the tribunal...."

Put briefly, the section provides that the FOI Act does not apply to certain records held by the courts. I should note that section 2(5)(a) of the Act provides that a reference to records held by a public body includes a reference to records under the control of the body, so that section 46(1)(a) applies to records held by or under the control of the courts. However, it is clear that this section does not exclude all records held by the courts from the application of the FOI Act. Two major exceptions are made of which only the first is relevant to this review viz. the FOI Act does apply to a record held by the courts and relating to proceedings in a court where the following three conditions are met:

the record relates to proceedings in a court held in public, and

the record was not created by the court, and

the disclosure of the record to the general public is not prohibited by the court.

It is clear that all of the records at issue in this case relate to proceedings in a court viz. the case of DPP v Mrs ACD, heard on 10 June 1998. It will also be clear from what I have said that some of the records at issue were created by the court and some were not and I will deal more fully with this matter when discussing the individual records.

However, the main plank of the Department's argument in relation to section 46(1)(a) is its claim that disclosure to the general public of the records in this case is prohibited by the court. It makes a number of points in support of this claim. The first is that section 65(3) of the Courts Officers Act, 1926 provides that all documents handed in to any court are to be held by or at the order or disposal of the relevant judge. It says that, in practice, such records are kept in the relevant court office, under the superintendence of the official in charge - in this case the County Registrar. It claims that the practice is to restrict access to the solicitors on record as representing the parties to the proceedings or to persons who obtain the consent of these solicitors. It says that this practice amounts to a prohibition on disclosure of those records to the general public.

In relation to transcripts, the Department makes the additional claim that the President of the High Court has directed that transcripts should not be released and it sent me the document referred to earlier which it said supported the existence of such a direction.

The Department's argument is that all records which relate to proceedings in a court held in public, including those not created by the court, are subject to a prohibition on their disclosure to the general public. It is clear that section 46(1)(a)(I) envisages that there will be records held by a court - being records relating to proceedings conducted in public and not created by the court - the release of which is not prohibited by the court. However, if the Department's argument is correct, then there would be no such records. The Department's argument leads to the conclusion that the statutory provision is, in effect, void. This is not an argument I can accept in the absence of a clear and unequivocal prohibition by the courts on the disclosure of such documents. The Department has relied on the existing practice of the courts but this is not, it seems to me, sufficient to establish that the courts have in fact placed a clear and unequivocal prohibition on the disclosure of such documents.

I do not accept that a general practice, which developed long before the enactment of the FOI Act, of refusing general access to documents held by the courts amounts to a prohibition on the disclosure of records as referred to in section 46(1)(a)(I) of that Act. It appears to me that what section 46(1)(a)(I) is concerned with is a specific prohibition imposed by the court which has dealt with, or is dealing with, the proceedings to which the record relates. I say this because, while section 46(1)(a)(i) is concerned with records held by the courts (plural), the exclusion at subparagraph (I) is concerned with records relating to proceedings in a court (singular), not created by the court and the disclosure of which to the general public is not prohibited by the court. The use of the definite article in the two later references to "court" suggests that these references are to the particular court concerned with the proceedings. Indeed, this approach appears to be fully in line with the understanding of the FOI Act outlined in the 1997 Working Paper on Information and the Courts, prepared by the Working Group on a Courts Commission under the chairmanship of Mrs. Justice Susan Denham. In commenting on the relevance of the FOI Act in the courts context, this Paper notes:

"Under [the FOI Act] ... any person will be entitled to access records relating to proceedings in a court held in public, whose disclosure to the general public is not prohibited by the court."

Another point in favour of such an interpretation is that, as tribunals are established on an individual basis, the reference to disclosure being prohibited by "the court or the tribunal" must be a reference to a specific, individual prohibition, as this is the only type of prohibition which could be made by a tribunal.

In the light of the above, and given the Department's failure to produce clear evidence of a prohibition as opposed to a practice, I must reject its claim to exemption under section 46(1)(a)(i).

Section 34(12)(b) of the FOI Act provides that a decision to refuse access is to be presumed not to have been justified unless the head concerned shows to my satisfaction, as Commissioner, that the decision was justified. In this case I am not satisfied that section 46(1)(a)(i) applies. Accordingly, the decision to refuse access on this ground is not justified.

Before leaving this point, I wish to refer back to the Department's argument that section 65(3) of the Courts Officers Act, 1926 provides for the preservation of judicial control of court business. While the Department did not specifically make the point, it might be inferred that the interpretation of section 46(1)(a)(i)(I) outlined above would interfere with the judicial control of court business. In my view this is not so. If, in any case, a court specifically (and for its own good reasons) prohibits release of a record which it holds, being a record not created by that court, then that is the end of the matter as far as the FOI Act is concerned. Such a record is excluded from the scope of the Act by section 46. Thus, judicial control of court business is fully preserved.

Arguments Regarding the Transcript

I turn now to the question of the transcript. The Department has made an additional argument here viz. that the President of the High Court has forbidden the issuing of transcripts to persons other than to parties to the case or their legal representatives. I have studied the draft letter which the Department sent me, and which it says represents a direction of the President of the High Court. The draft is on plain and not headed paper; it contains a number of hand-written amendments and a hand-written date of "September". While the document itself is unsigned, a covering internal memorandum dated 20 October 1994, and on Circuit Court Office headed paper, states that: "The then President of the High Court ... issued this direction, having discussed the matter with the Chief Justice and the President of the Circuit Court." The draft letter appears to have been prepared in response to a request from a body identified only as a 'Select Committee'. Despite its broad wording - understandable at a time when public bodies generally were governed by the sort of restrictions on public access to records in the Official Secrets Act - it seems to me that the essence of the reply is that the courts thought it inappropriate to make available transcripts to any other body which might in any sense be seen as reviewing or dealing with a matter already settled by the court. Otherwise, the draft letter seems to me to do no more than reflect the practice of the courts as at the date of the preparation of that letter and to explain the thinking behind that practice. It does not seem to me that it constitutes a general prohibition on disclosure irrespective of the circumstances of any particular case.

I have three comments regarding this draft letter. The first is that it was created many years prior to the enactment of the FOI Act. While providing an indication of how and why the President of the High Court thought requests for transcripts should be dealt with then, it is hardly a safe guide to the approach which might be adopted after the enactment of the FOI Act.

The second comment relates to the reporting of, and the dissemination of information about, court proceedings generally. I note that some time after the creation of the draft letter referred to above, the Supreme Court dealt with the question of reporting restrictions in relation to court proceedings which were held in public. This was in the case of Irish Times Limited &amp; Others V Murphy &amp; Others [1998] 1 I.R. 375. The case was concerned with whether or not a ban imposed by a trial judge on the contemporaneous reporting of a criminal trial was permissible. All five judges in the Supreme Court laid considerable emphasis on the importance of allowing an accurate account of what transpires in open court to be made available to the general public.

For example, Mrs Justice Denham said:

".....a hearing 'in public' signifies a hearing before the people. We are not living in ancient times or in a City State. We live in a modern democracy in the age of information technology. It is entirely impractical for all people to attend all courts. Nor is that required. What is required is that information of the hearings in court are in the public domain. In a modern democracy this information is brought into the public domain by many routes, but in reality most people learn of matters before the courts from the press. Thus any curtailment of the press must be viewed as a curtailment of the access of the people to the administration of justice."

Mr Justice Barrington said:

"The Press is in effect the eyes and the ears of the public. It is an important protection to accused persons that their case be heard in public. It is also important to the citizens in general that anything eccentric, unusual, or apparently unfair which happens in the Courts should be drawn to their attention."

Mr Justice Keane said:

"It is manifest that the right of the public to know what is happening in our courts, a right which is clearly recognised and guaranteed by Article 34, would be eroded almost to vanishing point if the public had to depend on the account that might be transmitted to them by such people as happened to gain admission to the court room for the trial in question. In modern conditions, the media are the eyes and ears of the public and the ordinary citizen is almost entirely dependent on them for his knowledge of what goes on in court.

Justice must be administered in public, not in order to satisfy the merely prurient or mindlessly inquisitive, but because, if it were not, an essential feature of a truly democratic society would be missing. Such a society could not tolerate the huge void that would be left if the public had to rely on what might be seen or heard by casual observers, rather then on a detailed daily commentary by press, radio and television. The most benign climate for the growth of corruption and abuse of powers, whether by the judiciary or members of the legal profession, is one of secrecy."

Mr Justice Hamilton emphasised that the inhabitants of the State:

"are entitled to be informed of the proceedings in the Court and to be given a fair and accurate account of such proceedings and the media are entitled to give such an account to the wider public."

"It is for the public benefit that a faithful account should be published of a transaction of which they might otherwise receive only a garbled account from the mouths of individuals."

It seems to me that the emphasis in all these judgements on the right of the public (subject to the proper administration of justice) to be given an accurate account of court proceedings is at odds with the idea of a blanket ban on the provision of transcripts of trials which have concluded. It can hardly be the case that court proceedings are invariably reported with complete accuracy. If, through the provision of a transcript, an inaccurate press report could be corrected then would this not serve the public interest in fair and accurate reporting of court proceedings? I refer to the above judgements not because they necessarily provide any great assistance in interpreting section 46(1)(a)(I), but because they seem to me to suggest that the draft letter provided by the Department is not a direction of the High Court intended to be applied in all cases and for all time but a statement of the practice of the courts as at the time that letter was written.

My third comment relates to the question of what constitutes a prohibition on disclosure to the general public. I do not accept that a practice of refusing to furnish copies of transcripts is the equivalent of prohibiting the disclosure of such records to the general public. The transcript is a record of proceedings which took place in open court. Mr ACD sent me cuttings from five newspapers showing that the proceedings were reported in some detail in the local and national media. The court did not seek to prohibit disclosure of the proceedings in this case and the proceedings have, in fact, been disclosed to the general public.

For the argument of the Department to succeed, I would have to accept that there is a distinction between disclosure of a record of proceedings and disclosure of proceedings. I would have to accept that the court, on the one hand, has no objection to a faithful and accurate account of the proceedings being made available to the general public where that account was compiled by a member of the press or by some other interested party. But I would also have to accept, on the other hand, that because of a blanket ban on the provision of transcripts, the court has prohibited the disclosure of the account compiled by the official stenographer. I do not accept that, in the context of the kind of record at issue in this case, there is a distinction between disclosure of a record of the proceedings and disclosure of the proceedings. I am not satisfied that the court has prohibited the disclosure of this record ( i.e. the transcript of the ACD case) to the general public.

I would like to make two final points before discussing the specific records in this case. The first is that there will be cases where the court prohibits the contemporaneous reporting of proceedings. I want to make it clear that the provisions of section 46(1)(a) ensure that the FOI Act does not apply to a transcript for the duration of that prohibition. The second is that nothing I have said should be taken as suggesting that the courts are obliged to create standard text transcripts from the outset in all cases. The current practice is to retain transcripts in the stenographer's short-hand copy until such time (if ever) as a standard text copy becomes necessary. The current practice seems sensible and nothing in this decision is intended to disturb it.

In the present case, I am concerned solely with the question of whether Mr ACD is entitled to access to a record which does, in fact, exist. I turn now to the specific records in this case.

The Transcript

As indicated above, this record relates to proceedings in a court and I find that its disclosure to the general public is not prohibited by the court. The next question to be considered is whether the transcript constitutes a record created by the court.

The record was created by a freelance stenographer who was not an employee of the Department. It seems to me that the record is under the control of the court in the sense that the court is entitled to a copy of the transcript upon payment of the appropriate fee. However, it does not seem to me that the fact that the court may have the record under its control, or may have arranged for its creation, means that the record was created by the court. I find that it was not so created. Having regard to the above, I find that section 46(1)(a) does not exclude this record from the application of the FOI Act. Accordingly, I find that Mr ACD is entitled to a copy of the transcript.

Before leaving this matter there are three further points which I need to address

the form of access to the record

the status of the record, and

the question of fees.

In relation to the form of access, section 12(1)(f) of the Act provides that the head of the public body may give access to a record by providing the requester with

" in case the information is in shorthand or other code, the information in decodified form and in written form or such other form as may be determined,"

Clearly, this is a case to which section 12(1)(f) applies so as to enable Mr ACD to acquire a written, decodified version of the record. I wish to make it clear that what Mr ACD is entitled to is a copy of the "decodified" stenographer's record. There is no requirement that this record be verified or settled by the judge or any court official. I make this point because the Department has indicated that, normally, a transcript is only verified by the trial judge where the case is proceeding to appeal.

On the question of fees, section 47 of the FOI Act provides for the charging of fees for the cost of search for, and retrieval of, a record as well as for the estimated cost of any copy made for the requester. I take the term "copy" to include a transcript. I note that the rate at which fees are to be calculated for search, retrieval and photocopying are set by regulation. No rate has been set in respect of the provision of a transcript. In the circumstances, the Department is required to charge a fee equal to the estimated cost of the copy. I note that the scale of charges agreed with freelance stenographers may be used for this purpose.

Group 1 Records

All of these records relate to Mrs ACD and were created before 21 April 1998. I have already found that access to these records is neither necessary nor expedient in order to understand records created after that date. It follows that Mr ACD can have no right of access to them unless the records relate to personal information about him.

With one exception, none of these records contain any reference to Mr ACD. The one exception is a report of a medical consultation which took place on 28 July 1997. The first five sentences of the third paragraph of this record contains some brief comments relating to Mr ACD. Essentially, they consist of Mrs ACD's explanation to a doctor of her family history and circumstances. In my view, and given the context in which the information was furnished, this constitutes information relating to her medical history, as referred to in subparagraph (i) of the definition of personal information. Having carefully considered these sentences, I am satisfied that this is personal information about Mrs ACD. I say this because the information in question is clearly of a kind which, in the ordinary course of events, would be known only to Mrs ACD or her family or friends. I note that some of this information has received a wider circulation due to the publicity surrounding the trial in this case. This does not take from the fact that, in the ordinary course of events, it would be known only to Mrs ACD, her family or friends.

At the same time, this portion of the medical report of 28 July 1997 contains information relating to Mr ACD and I am satisfied that this amounts to personal information in relation to him. In effect, this portion of the report contains joint personal information in relation to Mr and Mrs ACD. The release of joint personal information to one of the subjects is governed by the usual rules in relation to the release of a record containing personal information. The first option is that access may be granted to one party if the other party gives consent. In this case, Mrs ACD's consent has not been sought by the Department and, given the circumstances of the case, neither has it been sought by my Office.

The second option arises where, in the opinion of the head of the public body, the public interest that the request should be granted outweighs the public interest that the right to privacy of the other party should be upheld. It seems to me that the right to privacy in relation to the contents of communication between a patient and a doctor is of very significant weight. Having considered the matter, I can see no public interest in granting access to this part of the record which would outweigh the public interest in upholding the right to privacy in this case.

I find that Mr ACD is not entitled to access to any of the records in Group 1.

Group 2 Records

The records here consist of the book of evidence and an additional book of evidence in relation to the trial of Mrs ACD. All of these records were created before the commencement of the FOI Act i.e. before 21 April 1998. I have already found that access to these records is neither necessary nor expedient in order to understand records created after that date. It follows that Mr ACD can have no right of access to them unless the records relate to personal information about him.

In relation to the statutory declaration of service of documents, the statement of charges, the two lists of witnesses, the list of exhibits, and the covering letter from the State Solicitor, I find that these records do not relate to personal information about Mr ACD - rather they relate to the trial of Mrs ACD. The only information about Mr ACD that they might be said to relate to is that he was the victim of an assault - information which, in all the circumstances of the case, I would not consider to be personal information about him.

The witness statements numbered 2 to 13, 17, 18 and 22 are statements made by neighbours of Mr ACD or members of An Garda Síochána in the aftermath of the assault. Some of these contain no references to Mr ACD. Others contain brief references to him, but with one exception (see next paragraph), all of these are comments made by the authors based on their own observations. The information is not of a kind which, in the ordinary course of events, would be known only to Mr ACD. Neither is this information held on the basis that it would be treated as confidential since the witnesses must have expected that they might be called upon to give this information as evidence in court. I find that these records, with the one exception referred to above, do not relate to personal information about Mr ACD.

The one exception is part of witness statement number 2 commencing at 'Exhibit A' and ending with the second last sentence. It seems to me that some of this material could be described as relating to personal information about Mr ACD. However, it also relates to Mrs ACD. It follows that the provisions relating to the release of joint personal information - as discussed above in relation to Group 1 Records - apply. Essentially, the information concerned represents the views of the author about the state of the relationship between Mr and Mrs ACD. Mrs ACD's right to privacy would normally require that such comments should not be released under the FOI Act. Having considered the matter, I cannot see what aspect of the public interest would be served by granting access to these comments. I find that Mr ACD is not entitled to access to the witness statements numbered 2 to 13, 17, 18 and 22.

I note that witness statements numbered 1,19, 20 and 21 (the statements of Mr ACD and his children) are not at issue.

This leaves witness statements 14, 15, 16 and 23 (in the original book of evidence). These relate to Mr ACD's attendance and treatment in hospital. I find that they relate to personal information about him and that he is entitled to access to them.

In relation to the two statements made by Mrs ACD to An Garda Síochána, I note that the second one (timed at 10.40 pm on 10 July 1997) makes a brief reference to Mr ACD but I find that it does not relate to personal information about him. The first statement (timed at 9.25 pm on 10 July 1997) was given after Mrs ACD was cautioned that anything said might be given in evidence. The statement consists of Mrs ACD's explanation of the background to the assault and a description of the incident involved. I note that the statement appears to have been read out in open court. Nevertheless, it seems to me that, in the ordinary course of events, the information contained in it would be known only to Mr and Mrs ACD, their family and friends. I find that this record relates to personal information about both Mr and Mrs ACD with the exception of the 5th, 34th, 35th, 36th and 41st sentences which relate solely to Mrs ACD. It is not clear to me how Mrs ACD can be said to have a right to privacy in relation to the information in this statement, given the circumstances. There is a public interest in individuals having access to personal information about themselves held by public bodies, subject only to any exceptions in the Act which might apply. In my view, this aspect of the public interest is sufficient to enable section 28(5) to apply. I find that Mr ACD is entitled to access to this record with the deletion of the sentences referred to above.

Turning now to the additional book of evidence, I note that witness statement number 23 is a medical report on Mr ACD. I find that it relates to personal information about him and he is entitled to access to it. Witness statement number 24 is a forensic report. Although reference is made to Mr ACD in the report, I find that this record does not relate to personal information about Mr ACD.

Group 3 Records

Four of the ten records in this group consist of orders or directions made by the court. One further record is a hand-written note of the judgement. I find that these five records are excluded from the provisions of the FOI Act since they relate to proceedings in a court and were created by the court.

Of the remaining records in this group, three were created before 21 April 1998. These are two copies of summonses and a statement to the jury of charges preferred. While these records make a brief reference to Mr ACD, I find that they do not relate to personal information about him. I find that he is not entitled to access to them.

The final two records consist of completed claims for payment of fees in respect of medical reports. The records were created after 21 April 1998 (they relate to the trial of Mrs ACD). They were not created by the court. The Department has made no case that the disclosure of these records is prohibited by the Court. Section 34(12)(b) provides that a decision to refuse to grant access is to be presumed not to have been justified unless the head concerned shows to my satisfaction as Commissioner, that it was justified. In the circumstances, I am not satisfied that the Department was justified in refusing access to these records.

Decision

Having completed my review under section 34(2) of the FOI Act, I have decided to annul the decision of the Department and to make the following decision:

- grant access to a type written, decodified version of the transcript subject to payment of the appropriate fee as outlined above,

- grant access in full to witness statements numbered 14, 15, 16 and the two witness statements numbered 23 and to the two claims in respect of payment of fees, and

- grant access to the statement of Mrs ACD (made at 9.25 pm on 10 July 1997), subject to the deletion of the material described above, and